Video Games Plead the First

Video Games Plead the First

Constitutional law expert Paul McGreal breaks down Brown v. EMA.

On Monday, the Supreme Court of the United States ruled in favor of the video games industry in Brown v. Entertainment Merchants Association, striking down a California law that would have criminalized the sale of violent video games to minors. The majority opinion from Justice Antonin Scalia unequivocally stated that: “Video games qualify for First Amendment protection,” and after years of struggling for legitimization the landmark decision officially provides video games with the same constitutional guarantees enjoyed by more established media like movies, television, and literature.

Yet even as the verdict kicked off a deserved round of celebrations, some people warned that it might be better for the games industry to temper its collective enthusiasm. After all, two Justices offered dissenting opinions, while Samuel Alito suggested that a differently worded law might have been more palatable to the Court. Fortunately, we were able to speak with Paul McGreal, a constitutional law expert and the incoming dean of the University of Dayton School of Law, and he kindly answered a few questions to help clarify the situation for those who are neither lawyers nor American.

And yes, you should care even if you’re Canadian. As McGreal points out, it’s virtually impossible to separate the production of speech from the economic distribution of speech, and a sales restriction in one of the most world’s most prominent video game markets would have significant ramifications for the entire international landscape. Companies like Bioware and Ubisoft would have to reconsider their development practices if they were unable to sell certain games in the U.S., and nobody wants to see that happen given the prominence of the games industry in Canada.

Fortunately, the worst-case scenario has been avoided, so Bioware is free to continue peddling smut and violence – or maybe just Dragon Age – in the great state of California. Keep reading to find out what the Supreme Court’s latest ruling means for video games moving forward.

Comics & Gaming Monthly: While this is obviously a major victory for the games industry, what kind of significance does it have with regards to broader First Amendment rights?

Paul McGreal: It’s consistent with what the Supreme Court has done in the past, and I think it clarifies that there’s going to be strong protection of a wide variety of speech going forward. Traditionally, there’ve been several categories of unprotected speech the government can punish or ban without limitation. One example is obscenity. Another example is “fighting words” that would provoke someone to fight. Another would be inciting people to engage in lawless action. Last year the Court was asked to create a new category for videos that depicted animals being tortured or killed. The Court said historically that’s not a class of speech that can be banned.

The government tried a similar argument in the video game case saying that marketing violent video games to minors is a category of speech that should be less protected. The Supreme Court roundly said, “No, we were serious last year. We’re not creating new categories of less protected speech.” That was a big deal. A majority of the Court came down and said even though we’re dealing with children, and speech that’s directed to children, it’s not going to be a new category of speech. This speech gets the same protection as other protected speech like political speech.

CGM: There were dissenting opinions from Clarence Thomas and Stephen G. Breyer, so is there any chance we’ll see some other type of legislation despite the ruling today?

PM: I see very little, if any, room for new legislation. They call it the rule of five [there are nine justices on the U.S. Supreme Court]. You get five votes, and you control the outcome, so unless we have new members on the Court, the fact that Thomas and Breyer wrote their opinions, it’s interesting and we can talk about it in law school classes, but it has no effect on the law.

CGM: We happen to be a Canadian publication, so in a strictly legal sense the law wouldn’t have had too much immediate impact on developers up here. Knowing that, why was this case so important for the international games industry as a whole? What were the potential implications had it gone the other way?

PM: If it had gone the other way, it would affect at point of sale anything sold within California, and with California being a big market, it might have affected other states that would implement similar laws around the country. And then, of course, it would limit the ability to sell to minors. It wouldn’t just be labeling. There would have to be more enforcement mechanisms. So for example, like with cigarettes or alcohol, there would have to be some form of ID checking. Perhaps there’d be limitations about where that type of material could be stored within a retail outlet. With cigarettes, they’re behind the counter. So there’s a whole number of ways in which the marketing and distribution of video games could be affected if their sale could be restricted based on age.

CGM: So it affects the economics, regardless of jurisdiction?

PM: There was some argument that said the state of California is not regulating the creation of this material. It’s just regulating the sale of distribution. Scalia said that’s like saying you can ban the publishing of books, but that’s OK because you’re not banning the writing of books. Well, that’s the whole point, to disseminate ideas through a distribution network. So I liked the way Scalia linked the distribution and the economics to the creation of the material and the dissemination of speech. I think they’re all tied together. If you affect the economics, you’re of necessity going to be having an effect on the dissemination of the ideas, but also possibly an effect on the creation of the material.

CGMThe opinion explicitly states that video games are protected under the First Amendment. Knowing that, do you think we’re going to see more variety from video games moving forward? What kind of confidence might this give the industry?

PM: It gets the government off their back. Developers working on new concepts don’t have to worry about where it’s going to slot into some sort of government regulatory scheme.

CGM: What does this ruling say about the ESRB and the video game industry’s attempts at self-regulation? They’ve been facing a lot of criticism, but Federal Trade Commission reports show that compliance rates are better for video games than they are for music and movies, so does this give the ESRB more credence as a regulatory body?

PM: Scalia noted that in his opinion, that there’s a fairly robust and credible self-regulating system that gives parents useful information. California said, “Oh, we’re just trying to help parents in this area.” Scalia’s response was the industry’s already giving them quite a bit of assistance, and there’s no indication that this law does anything additional to help. That was a big endorsement of the credibility of that system.

CGM: It does seem kind of funny that the Court defended the regulatory authority of a private organization over that of the government. I imagine we’d be having a very different conversation had the Court ruled in favor of California.

PM: The question would be pushing forward. If the government wins one round like this, it often signals that if this law’s OK, where’s the boundary? That’s really where the conversation comes. Once a particular law is upheld, then the government can continue pushing until it finds the boundaries of its power. This ruling basically ends any attempt by the government to do that.

CGM: Right now it’s video games, but the opinion did make reference to similar court cases involving other media like comic books. Are we going to keep having this debate whenever we come up with another new medium?

PM: The very end of [Scalia’s opinion] – and I love this quote – is, “California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.” So yeah, history is going to keep repeating itself, and each time there’s a new medium there’ll be an attempt to distinguish that medium.

In this opinion, Scalia specifically addressed the argument of California, that because this medium is interactive and participatory, it’s different and should be treated differently than movies, television shows, comic books, etc. Scalia rejected that argument, saying that even good literature draws the reader in and is participatory at that level, so it’s not a distinction he accepted. Any new medium that comes along, there’ll be an attempt to say it poses a greater danger, but Brown v. Entertainment Merchants Association really gives strong protections. It’s going to be very hard to claim that a new medium is different.

CGM: Scalia noted that the psychological and academic evidence linking violent video games to increased aggression wasn’t particularly compelling. Would the Court consider a different verdict if future studies show something more definitive?

PM: That’s the one area where I think this opinion leaves some room for the government in the future, but it has a lot of work. The test that’s applied by the Court is something they call strict scrutiny. It’s the most difficult test in all of constitutional law. Strict scrutiny has two parts. First, the government has to show that its law addresses a compelling interest. Secondly, it has to show that the law is narrowly tailored to that compelling interest.

The evidence that you’re talking about went to the first part, that the government had a compelling interest, and Scalia describes that as a serious real world problem that actually exists. California said we do have one. It’s that exposure to violent video games causes minors to act aggressively. Scalia looked at all the studies, and he said, you know what? You have no proof. At most, you have some small indications that kids are louder and that there’s a loose correlation with that type of behavior. If the government has new studies in the future that conclusively prove that connection, that could change the outcome, but Scalia says he’s seen nothing that shows that type of indisputable proof.

CGM: If someone did come up with conclusive evidence for video games, would it send other entertainment products – like, say, Saturday morning cartoons – down the proverbial slippery slope and alter how the rest of the media gets regulated?

PM: Scalia noted that the same thing happens after playing Sonic the Hedgehog or watching Bugs Bunny, and that’s why this is not the type of thing government can be regulating under strict scrutiny. He’s saying that you’d have to have conclusive evidence that a particular type of content actually causes serious violence or aggressive acts on the part of the viewers later on, and a simple, passing, minor increase in aggressive is not going to get it done.

To have the wide sweeping regulation you’re talking about, you’d have to have that kind of conclusive proof for each type of medium you’re trying to regulate. Scalia’s saying we’re a long way from any evidence of that. I think he’s skeptical that the government could ever show that.

CGM: Will that have an impact on future constitutional challenges?

PM: It’s really clarified this area of law, and I think by implication a number of other areas of First Amendment rights. The Court’s not going to start creating different types of treatment for different types of speech, which is welcome for those who strongly support the First Amendment.

CGM: There was obviously support for the original law that passed in California, and many people would still like to see some sort of video game regulation. What will those people do now that this case has been decided?

PM: You know, it’s really hard to say. Without additional proof – that seems to be what they’re going to do, is go back and try to muster additional proof – I don’t see any opening that the Court’s given them for them to re-draft this law.

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